Metal trader requests fast-track competition infringement claim against leading trade association

On 26 January 2021 the Competition Appeal Tribunal (CAT) published a notice of a standalone competition damages claim (brought under section 47A of the Competition Act 1998) by Kerilee Investments, a metal trader, against the International Tin Association, a UK based trade association.  The claimant alleges that the trade association abused its dominant position and engaged in anti-competitive agreements in two interrelated markets: the market for certain responsibly produced and supplied minerals and the market for accreditation and standardisation of producing and supplying such minerals.

The International Tin Association is the leading provider of upstream due diligence services in the relevant market and the claim relates to a number of alleged competition law infringements:

• Kerilee Investments claims that it was excluded from membership of the trade association without objective justification or due process, which amounts to an abuse of the trade association’s dominant position. As a result competition in the downstream market is restricted, causing loss to the claimant as well as having a direct or indirect impact on commodity prices paid by consumers.
• The trade association is accused of granting discounts to selected members for upstream due diligence costs, which are not available to non-members, thereby distorting price competition.
• Kerilee Investments alleges that it has been subject to selective punitive ‘incident investigations’ by the trade association, of which its members were alerted.  Trade association members are said to be discouraged from dealing with entities subject to such investigations.
• It is alleged that the trade association exchanges commercially sensitive information with its members who are prevented from sharing any such information with non-members.
• It is alleged that the trade association discourages its members from trading with non-members.
• It is alleged that the trade association creates exclusive and closed industry standard codes and practices relating to its due diligence protocols which are non-transparent and not easily accessible to non-members.

The claim contains the list of ‘don’ts’ typically given to trade associations in the context of competition law compliance advice and should act as a reminder to all trade associations of the importance of keeping competition law compliance under constant review.

Interestingly the claim is brought under the fast-track procedure in the CAT, which was introduced in October 2015 in order to allow a  faster resolution of competition law claims and greater cost control (see our briefing here for more details on the procedure). The CAT determines whether a case is suitable for the fast-track procedure based on a number of factors, such as whether the claimant is an SME, complexity of the issues, time estimate for the hearing and scale of witness and documentary evidence.

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